Glanzer v. Reed

#24673, #24697-a-JKK
2008 SD 104

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

LILLIAN R. GLANZER, JOHN
GLANZER, and FORDHAM
HUTTERIAN BRETHREN, INC., Plaintiffs and Appellees,
v.
RICHARD H. REED, M.D., Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
BEADLE COUNTY, SOUTH DAKOTA

* * * *

HONORABLE JON R. ERICKSON
Judge

* * * *
WILLIAM P. FULLER
SUSAN M. SABERS
HILARY L. WILLIAMSON of
Fuller & Sabers, LLP Attorneys for plaintiffs
Sioux Falls, South Dakota and appellees.

JEFF BURNS of
Churchill, Manolis, Freeman,
Kludt, Shelton & Burns
Huron, South Dakota

WILLIAM M. HART
BARBARA A. ZUREK
NICOLE L. BRAND of
Meagher & Geer, PLLP Attorneys for defendant
Minneapolis, Minnesota and appellant.
* * * *
CONSIDERED ON BRIEFS
ON SEPTEMBER 30, 2008

OPINION FILED 10/29/08
#24673, #24697

KONENKAMP, Justice

[¶1.] In this medical malpractice action, the jury returned a verdict in favor

of the doctor, finding no negligence. After the verdict, we handed down Papke v.

Harbert, 2007 SD 87, 738 NW2d 510, where we ruled that the “error in judgment”

pattern jury instruction should not be given in medical malpractice cases. Because

that instruction was used in this case, the circuit court granted plaintiff’s motion for

a new trial. Finding no abuse of discretion, we affirm.

Background

[¶2.] On February 24, 2001, Lillian Glanzer went to the Huron Medical

Clinic complaining of severe abdominal pain. After an examination by Dr. Becker

and CT scan, Glanzer had a surgical consultation with Dr. Richard Reed. Dr. Reed

concluded that Glanzer’s gallbladder was the likely cause of her severe pain and

advised that she have it removed. He performed the laparoscopic surgery at 4:00

p.m. that same afternoon.

[¶3.] During the operation, Dr. Reed encountered a considerable amount of

adhesions, thin strands of scar tissue that can cause organs to stick together. These

adhesions were produced from her four previous cesarean sections, a hernia

operation, and a hysterectomy. Dr. Reed was required to “take down” or cut apart

the adhesions. This increased the risk that Glanzer’s bowels could be perforated, a

serious, sometimes fatal, complication. Dr. Reed was able to take down a

significant number of adhesions. According to his medical records, he chose not to

take down certain adhesions located near the gallbladder because he was concerned

-1-
#24673, #24697

he might injure the small bowel. Ultimately, Dr. Reed removed Glanzer’s

gallbladder and finished her surgery.

[¶4.] Although laparoscopic surgery is generally accompanied with a quick

recovery and little or no pain, Glanzer’s recovery was slow. The day after her

surgery, she complained of severe abdominal pain and nausea. Dr. Reed was

prevented from seeing Glanzer that day because of severe winter weather. But he

was in regular contact with her nurses and Dr. Becker.

[¶5.] On February 26, two days after the surgery, Dr. Reed personally

examined Glanzer. He considered her symptoms red flags of a possible bowel

perforation and noted in her medical records that if the symptoms did not improve

he would perform an exploratory laparoscopy. These symptoms included: nausea,

vomiting, low urine output, distended abdomen, absence of bowel sounds, little to no

bowel function, extreme abdominal pain, and high white blood cell count. That

same day, Glanzer developed pneumonia in her left lung. Pneumonia can occur

postoperatively when a patient is not mobile and is experiencing abdominal pain

that causes shallow breathing. Glanzer, however, had a bowel movement and did

not have a fever, which indicated to Dr. Reed that she did not have a perforated

bowel.

[¶6.] On February 27, Glanzer was in less pain. She had good bowel sounds,

experienced another bowel movement, and had a soft abdomen. Dr. Reed noted that

her white blood cell count was also returning to normal. She still had low urine

output, and an x-ray showed the presence of free air in her abdomen. That night,

however, Glanzer’s condition rapidly deteriorated. On the morning of February 28,

-2-
#24673, #24697

she was rushed to the intensive care unit in response to a multi-system failure. She

was short of breath, with an increased pulse rate, abdominal distention, and no

bowel sounds. A CT scan revealed free fluid in her abdomen.

[¶7.] Dr. Reed believed that Glanzer’s bowel had now perforated, based on

her symptoms and the presence of free fluid in her abdomen. He took her to surgery

where he located and repaired the bowel perforation. After the surgery her health

did not improve. Dr. Reed performed another surgery. Glanzer still did not recover

and was ultimately transferred to Avera McKennan Hospital in Sioux Falls. There,

she underwent multiple surgeries and a lengthy recovery.

[¶8.] Glanzer brought suit alleging that Dr. Reed breached the standard of

care in the performance of his medical duties and surgical treatment. She further

alleged that Dr. Reed did not obtain her informed consent before surgery. In

preparation for trial, Glanzer moved in limine to prevent Dr. Reed from relying on

or referring to the error in judgment instruction. Her motion was denied. During

the settling of jury instructions, Dr. Reed requested, and Glanzer objected to, the

error in judgment instruction. The court overruled the objection and the instruction

was given to the jury. The jury returned a verdict for Dr. Reed on May 17, 2007.

[¶9.] Glanzer moved for a new trial claiming, among other things, that the

error in judgment instruction was prejudicial and affected her substantial rights.

She relied on our decision in Papke, 2007 SD 87, 738 NW2d 510, a case handed

down on August 15, 2007. After a hearing, the circuit court granted Glanzer’s

motion. In its findings of fact and conclusions of law, the court found that the “error

in judgment instruction was an integral part of” Dr. Reed’s defense. Thus, it

-3-
#24673, #24697

concluded that in all probability the instruction had some effect on the verdict and

prejudiced Glanzer. Dr. Reed appeals asserting that the court abused its discretion

when it granted Glanzer a new trial.

Analysis and Decision

[¶10.] In Papke, we examined the relevance of the error in judgment jury

instruction, which stated:

A physician is not necessarily negligent because the physician
errs in judgment or because efforts prove unsuccessful.

The physician is negligent if the error in judgment or lack of
success is due to a failure to perform any of the duties as defined
in these instructions.

2007 SD 87, ¶14, 738 NW2d at 516 (emphasis added in Papke). Because the

instruction “in no way further defines or explains the applicable standard of care to

the jury,” we ruled that “such language should not be used in ordinary medical

malpractice actions.” Id. ¶50. However, as in all cases where an erroneous jury

instruction was used, for the error to be reversible, the complaining party must

establish prejudice. In Papke, the plaintiff showed sufficient prejudice, and we held

that the use of the instruction amounted to reversible error. Id. ¶52. In another

medical malpractice case using this erroneous instruction, the plaintiff did not

establish that the instruction in all probability produced an effect on the verdict.

Veith v. O’Brien, 2007 SD 88, ¶56, 739 NW2d 15, 31. Therefore, we held that the

use of the instruction in that case did not constitute reversible error.1 Id.

1. Concededly, there may be little to distinguish our holding in Veith, except
perhaps (1) the generic nature of the objection made to the error in judgment
instruction, (2) the fact that, besides the negligence claim, informed consent
(continued . . .)
-4-
#24673, #24697

[¶11.] Here, we have yet another medical malpractice case where the error in

judgment instruction was used. Glanzer claims that the use of the instruction

constituted prejudicial error akin to Papke. Dr. Reed, on the other hand, avers that

Veith controls, as the error in judgment instruction was inconsequential to his

defense. Papke and Veith produced no different rule on the use of the error in

judgment instruction. Papke banned the instruction as error; Veith in no way

qualified that holding. 2

[¶12.] What distinguishes Papke and Veith is the application of the

underlying facts to our law requiring prejudice before an erroneous instruction will

be deemed reversible. While the plaintiff in Papke was able to establish sufficient

prejudice, the facts giving rise to that prejudice did not create a threshold standard

for reversible error when the error in judgment instruction is used. See Papke, 2007

SD 87, ¶52, 738 NW2d at 528 (error admitted, heavy reliance on and reference to

the error in judgment instruction during closing argument, and claim that the

instruction is vital to the defense theory). Likewise, our holding in Veith should not

be understood to mean that we will decline to find prejudice if the defendant proves

__________________
(. . . continued)
was a major issue, and (3) the instruction may have been correct, in part,
because of the doctor’s choice between two accepted forms of treatment. See
the following footnote.

2. In a footnote in Papke, we acknowledged that in certain limited
circumstances an instruction similar to the error in judgment instruction
might be warranted. 2007 SD 87, ¶50 n15, 738 NW2d at 527 n15. However,
this does not mean that use of the error in judgment instruction as termed in
South Dakota Pattern Jury Instructions would ever be permissible. See
Veith, 2007 SD 88, ¶54, 739 NW2d at 30 (use of “error” is inappropriate).

-5-
#24673, #24697

the instruction was “an inconsequential focus” of the defense. See 2007 SD 88, ¶54,

739 NW2d at 30.

[¶13.] Our duty, rather, is to examine the facts of each case and determine if

the complaining party established that “‘in all probability [the erroneous

instruction] produced some effect upon the verdict and [was] harmful to the

substantial rights of a party.’” Papke, 2007 SD 87, ¶50, 738 NW2d at 527 (quoting

Vetter v. Cam Wal Elec. Coop., Inc., 2006 SD 21, ¶10, 711 NW2d 612, 615) (citation

omitted). Here, the circuit court granted a new trial, finding the instruction

prejudicial. Therefore, we review the court’s decision under the abuse of discretion

standard. See Waldner v. Berglund, 2008 SD 75, ¶11, 754 NW2d 832, 835 (citations

omitted). “Whether a new trial should be granted is left to the sound judicial

discretion of the trial court, and this Court will not disturb the trial court’s decision

absent a clear showing of abuse of discretion.” Id. (quoting Schuldies v. Millar, 1996

SD 120, ¶8, 555 NW2d 90, 95 (quoting Junge v. Jerzak, 519 NW2d 29, 31 (SD 1994)

(citations omitted))).

[¶14.] According to Dr. Reed, the court abused its discretion when it

concluded that the instruction was prejudicial. He argues that because he never

admitted that he made an error, and never referred to or relied on the error in

judgment language in his defense, the instruction was inconsequential. While

Glanzer agrees that Dr. Reed never specifically referred to the instruction or

admitted that he erred, she contends that the underlying theme of his defense was

that he was not negligent because he had to exercise his judgment to determine how

to proceed.

-6-
#24673, #24697

[¶15.] The circuit court considered the evidence and concluded that the

instruction in all probability produced some effect on the verdict and harmed

Glanzer’s substantial rights. In its findings of fact and conclusions of law, the court

identified Dr. Reed’s defense as an “argument that in his judgment other

complications were more likely than perforation and therefore in his judgment there

was no need to act to repair the perforation.” The court further declared that “[t]he

error in judgment instruction was an integral part of Defendant’s theory, that

being, that although a perforation occurred during the course of laparoscopic

surgery in Dr. Reed’s judgment other complications were more likely than the

perforation.”

[¶16.] In considering a new trial motion, a judge is not obliged to view the

evidence in a light most favorable to the nonmoving party. Henry v. Henry, 2000

SD 4, ¶9, 604 NW2d 285, 289 (citing 1 S. Childress and M. Davis, Federal

Standards of Review § 5.09 (2ded 1992) (discussing Rule 59 of the Federal Rules of

Civil Procedure)). Thus, the court was not required to view the evidence in a light

most favorable to Dr. Reed. Nevertheless, Dr. Reed at all times asserted that the

perforation occurred on February 28, several days after the surgery, rather than

“during the course of laproscopic surgery” as found by the court. There is no dispute

that the error in judgment instruction was never mentioned or discussed with the

jury by the defense or its witnesses. While Dr. Reed and his expert testified that

Dr. Reed was required to make certain judgment calls based on Glanzer’s

symptoms, at all times the defense and its witnesses maintained that Dr. Reed

made the right decisions based on the circumstances presented to him. Therefore,

-7-
#24673, #24697

based on our review, we conclude that the circuit court erred when it found that Dr.

Reed’s theory was that “a perforation occurred during the course” of the

laparoscopic surgery.

[¶17.] Setting aside for the moment this erroneous factual finding, we

examine the record itself to determine whether the court abused its discretion when

it granted Glanzer a new trial. According to Glanzer, the evidence proved that Dr.

Reed was aware she was possibly suffering from a perforated bowel. She relies on

his medical notes from his February 26 examination where he stated, “I did a lot of

taking down of adhesions during that laparoscopic procedure. Does she have a hole

in the bowel? Or ileus?” 3 Dr. Reed then wrote, in his notes following the second

surgery, that

[t]here was an area in the lower abdomen where small bowel
was stuck against the midline abdominal scar. This area was an
area that I bluntly probed to see how loose it was; how easily it
would be to take down and I found it extremely difficult so I did
not attempt to take any adhesions down in this area. However,
apparently, probing with a blunt dissector had perforated small
bowel when I was trying to make my decision and there is where
I found the hole.

(Emphasis added). In his defense, Dr. Reed maintained that Glanzer’s bowel did

not perforate until February 28, despite his thoughts expressed in his medical

notes. According to Dr. Reed, Glanzer’s symptoms pre-February 28, were not

indicative of a perforated bowel and did not support exploratory surgery. Relying

on medical judgment, Dr. Reed and his expert testified that he correctly and timely

3. An “ileus” is an intestinal obstruction. Taber’s Cyclopedic Medical
Dictionary, 824 (15thed 1985).

-8-
#24673, #24697

diagnosed Glanzer’s perforated bowel on February 28, and took appropriate medical

action thereafter.

[¶18.] Thus, the question remains, did the circuit court abuse its discretion in

granting a new trial? “Although we have repeatedly invoked stock definitions, the

term ‘abuse of discretion’ defies an easy description. It is a fundamental error of

judgment, a choice outside the range of permissible choices, a decision, which, on

full consideration, is arbitrary or unreasonable.” Burley v. Kytec Innovative Sports

Equipment, Inc., 2007 SD 82, ¶12, 737 NW2d 397, 402 (quoting Arneson v. Arneson,

2003 SD 125, ¶14, 670 NW2d 904, 910 (citation omitted)). We certainly can read

the transcripts and see that the words “error in judgment” were never mentioned by

the defense, but we cannot as surely conclude that the jury did not rely on the

erroneous instruction. Conscientious jurors study the instructions on their own,

often without prompting from counsel. Whether the word “judgment” was invoked

or not, this was a case of medical judgment.

[¶19.] Despite the circuit court’s erroneous fact finding, there is support in

the record for the court’s conclusion that in all probability the instruction produced

some effect on the verdict and harmed Glanzer’s substantial rights. See Papke,

2007 SD 87, ¶50, 738 NW2d at 527 (citations omitted). Recognizing that “a decision

to grant a new trial stands on firmer footing than a decision to deny a new trial” we

cannot say the court abused its discretion. See Junge, 519 NW2d at 31 (citation

omitted).

[¶20.] Affirmed.

-9-
#24673, #24697

[¶21.] GILBERTSON, Chief Justice, and ZINTER and MEIERHENRY,

Justices, and MILLER, Retired Justice, concur.

[¶22.] MILLER, Retired Justice, sitting for SABERS, Justice, disqualified.

-10-